COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued at Salem, Virginia 

DONALD LLOYD RUSSELL, JR. 

 OPINION BY 

v. Record No. 2530-99-3 JUDGE LARRY G. ELDER 

 OCTOBER 24, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Joseph A. Sanzone (Sanzone & Baker, P.C., on 

brief), for appellant. 

 Shelly R. James, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Donald Lloyd Russell, Jr., (appellant) appeals from his 

bench trial conviction for possession of cocaine with intent to 

distribute in violation of Code § 18.2-248. On appeal, he 

contends the trial court erroneously (1) denied his motion to 

suppress and (2) found the evidence sufficient to prove he 

constructively possessed the cocaine. We hold, under the 

totality of the circumstances, that the police lacked probable 

cause to arrest appellant or search his car and, therefore, that 

the trial court erroneously denied appellant's motion to 

suppress the evidence seized from his person, car and residence. 

Accordingly, we reverse appellant's conviction and remand for 

further proceedings if the Commonwealth be so advised. 
I. 

BACKGROUND1

 At about 5:00 a.m. on February 3, 1999, Lynchburg Narcotics 

Investigator Duff had a face-to-face meeting with an informant 

with whom he had not previously met or had any dealings. In the 

hope of gaining "[c]onsideration on an outstanding charge," the 

nature of which does not appear in the record, the informant 

advised Duff that an African-American male named Troy, who was 

from New York City, would deliver a large quantity of cocaine to 

a specified residence in the Lynchburg College area at 7:30 a.m. 

that same morning. Duff refused to testify to the actual 

address of the residence because it was "extremely specific as 

to the identity of the informant." The informant reported that 

Troy lived near Burrus Lumber Company off Campbell Avenue and 

that he drove a blue or green rented Ford Taurus. Although the 

informant did not know Troy's full name, he described two 

previous shooting incidents in which Troy had been involved. 

 Because Duff had not previously worked with this informant, 

he conducted "an in-depth interview with [him] to establish 

credibility and reliability . . . as to his knowledge of the 

drug trade." Duff reported his personal belief that "one of the 

most important ingredients in reliability is [the informant's] 

 1

 In ruling on a motion to suppress, we consider the 

evidence adduced at both the suppression hearing and the trial. 

See DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 

540, 542-43 (1987). 

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knowledge of the drug trade," saying that he "value[d] that very 

highly." The informant admitted he was "involve[d] in the drug 

trade" as a seller and user of crack and powder cocaine and 

accurately described to Duff the process of making crack 

cocaine. He also gave Duff specific information about other 

people involved in the drug trade in the area, which coincided 

with information Duff had received from other informants Duff 

knew to be reliable. 

 With the specific information the informant had provided 

about "Troy," Duff was able to determine Troy was the alias of 

Donald Russell. Russell resided directly across the street from 

Burrus Lumber Company, and Duff observed a dark blue Ford Taurus 

in the driveway of the residence. Duff showed the informant a 

picture of Russell, and the informant confirmed Russell and Troy 

were the same person. Duff admitted that most of the verifiable 

information provided by the informant--appellant's name, city of 

origin, prior involvement in two specific shootings, and current 

residence--was public knowledge. 

 Duff opted not to apply for a search warrant at that time 

because he "wanted to verify more of this activity that was 

going to occur." He admitted he could have applied for an 

anticipatory search warrant conditioned upon appellant's arrival 

at the house specified by the informant. 

 At about 6:00 a.m., Duff began surveillance on appellant's 

residence. At about 7:10 a.m., appellant exited the house and 

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entered the Taurus. He stopped the car briefly to put something 

in a mailbox and then drove to Route 29 North heading away from 

the city. Duff opted not to continue surveillance at that time 

and drove instead to the Lynchburg College area, where the 

informant reported appellant would deliver cocaine at 7:30 a.m. 

Appellant was out of Duff's view for about fifteen minutes. At 

precisely 7:30 a.m., Duff observed appellant drive into the 

Lynchburg College area. Appellant drove past the street on 

which the informant said he would stop, and Duff radioed to 

other officers, who stopped appellant's vehicle within one or 

two blocks of the residence specified for the drug transaction. 

Duff admitted appellant's vehicle was headed away from the 

specified residence at the time the officers stopped him but 

said "[t]here are different ways to get to that place" and 

"[i]t's not uncommon for somebody to circle an area before they 

make a cocaine drop." 

 Appellant was arrested, and the vehicle and appellant's 

person were searched. Using the evidence seized in that search, 

the police also obtained a warrant to search appellant's 

residence. 

 Appellant sought to suppress the fruits of those searches. 

The trial court denied the motion, noting that, "although we 

don't know the basis of the informant's information," "under the 

totality of the circumstance test I think there's enough." 

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II. 

ANALYSIS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving the challenged action did 

not violate the defendant's constitutional rights. See Simmons 

v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). 

"[T]he test of constitutional validity [of a warrantless arrest] 

is whether at the moment of arrest the arresting officer had 

knowledge of sufficient facts and circumstances to warrant a 

reasonable man in believing that an offense has been committed." 

Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 

(1970). Probable cause to arrest must exist exclusive of the 

incident search. See Carter v. Commonwealth, 9 Va. App. 310, 

312, 387 S.E.2d 505, 506 (1990). 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party, here the Commonwealth, granting to it 

all reasonable inferences fairly deducible therefrom. See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 

47, 48 (1991). "[W]e are bound by the trial court's findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them[,] and we give due weight to the inferences drawn 

from those facts by resident judges and local law enforcement 

officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United 

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 

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911 (1996)). However, we review de novo the trial court's 

application of defined legal standards such as probable cause to 

the particular facts of the case.2 See Ornelas, 517 U.S. at 699, 

116 S. Ct. at 1663. 

 When the factual basis for probable cause is provided by an 

informer, the informer's (1) veracity, (2) reliability, and (3) 

basis of knowledge are "highly relevant" factors in the overall 

totality-of-the-circumstances probable cause analysis. See

Illinois v. Gates, 462 U.S. 213, 230, 233, 103 S. Ct. 2317, 

2328, 2329, 76 L. Ed. 2d 527 (1983). 

[A] deficiency in [either veracity or basis 

of knowledge] may be compensated for, in 

determining the overall reliability of a 

tip, by a strong showing as to the other, or 

by some other indicia of reliability. If, 

for example, a particular informant is known 

 2

 This is higher than the standard we apply in reviewing the 

existence of probable cause to support the issuance of a 

warrant. Appellate review of a magistrate's probable cause 

determination is deferential in nature, and the reviewing court 

determines whether the evidence, viewed as a whole, provided the 

magistrate with a substantial basis for concluding that probable 

cause existed to issue the warrant. See Illinois v. Gates, 462 

U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 

(1983). Even if the warrant is ultimately found to be 

unsupported by probable cause, evidence seized pursuant to that 

warrant may nevertheless be admissible if the officer is found 

to have relied on the warrant in good faith. See Polston v. 

Commonwealth, 255 Va. 500, 503-04, 498 S.E.2d 924, 925-26 

(1998). In the absence of a warrant, however, we review the 

issue of probable cause de novo, giving no deference to the 

officer's legal determination. See Ornelas, 517 U.S. at 699, 

116 S. Ct. at 1663. It may also be that "'in a doubtful or 

marginal case a search under a warrant may be sustained where 

without one it would [fall].'" 2 Wayne R. LaFave, Search and 

Seizure § 3.1(c), at 14 (3d ed. 1996) (quoting United States v. 

Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 744, 13 L. Ed. 2d 

684 (1965)). 

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for the unusual reliability of his 

predictions of certain types of criminal 

activities in a locality, his failure, in a 

particular case, to thoroughly set forth the 

basis of his knowledge surely should not 

serve as an absolute bar to a finding of 

probable cause based on his tip. Likewise, 

if an unquestionably honest citizen comes 

forward with a report of criminal activity 

--which if fabricated would subject him to 

criminal liability--we have found rigorous 

scrutiny of the basis of his knowledge 

unnecessary. Conversely, even if we 

entertain some doubt as to the informant's 

motives, his explicit and detailed 

description of alleged wrongdoing, along 

with a statement that the event was observed 

first-hand, entitles his tip to greater 

weight than might otherwise be the case. 

Id. at 233-34, 103 S. Ct. at 2329-30 (citations and footnote 

omitted). 

 When the informer is a "criminal" rather than a 

"disinterested citizen" victim or eyewitness and the tip is 

conveyed in the form of a police officer's hearsay testimony, 

the reliability of the tip may be established in many different 

ways, including by showing that: 

(1) the informer has previously given 

reliable information; (2) the informer 

previously has worked with the police and 

has made controlled buys or worked in 

narcotic surveillance or other law 

enforcement efforts; (3) the informer 

provided detailed information that only a 

person who had actually observed the 

criminal activity would know; or (4) the 

informer has made a declaration against his 

penal interest. 

Polston v. Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632, 

635 (1997), aff'd on other grounds, 255 Va. 500, 498 S.E.2d 924 

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(1998); see also Ortega v. Christian, 85 F.3d 1521, 1525 (11th 

Cir. 1996) (noting that statement against penal interest, 

without more, will not raise an informant's tip to probable 

cause). Also, knowledge of a particular area's "drug culture" 

is an appropriate factor for consideration in assessing an 

informant's credibility. See Polston, 24 Va. App. at 749, 485 

S.E.2d at 637; see also United States v. Wilhelm, 80 F.3d 116, 

121 (4th Cir. 1996) (noting that this factor should be 

considered carefully because "anyone who occasionally watches 

the evening news can make generalizations about what marijuana 

looks like and how it is packaged and sold"). 

 We applied these principles to the issuance of a search 

warrant in Boyd v. Commonwealth, 12 Va. App. 179, 402 S.E.2d 914 

(1991). The informer indicated that he was familiar with 

cocaine and its packaging through personal use and that, within 

the previous seventy-two hours, he "had personally observed 

cocaine packaged for distribution, and scales used for such 

purpose, at [Boyd's] residence." Id. at 182-83, 402 S.E.2d at 

916-17. He described Boyd, his house and his car, recited his 

address, and gave the name of Boyd's girlfriend, whom he said 

resided at the same address. See id. The investigating officer 

was able to confirm the wholly innocent portions of the tip, and 

the magistrate issued a search warrant for Boyd's residence. 

See id. at 182-83, 402 S.E.2d at 916-17. 

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 On appeal of the denial of Boyd's motion to suppress, we 

noted that verification of innocent details, although not 

dispositive, "establish[ed] that the informer at least had a 

limited personal familiarity with the suspect" and that 

verification was a circumstance to be considered in determining 

the credibility and reliability of the tip. Id. at 189, 402 

S.E.2d at 920. We held, 

[b]ased upon the personal data furnished 

about the informer, the disclosure that the 

informer had provided the officer sufficient 

personal information from which he could be 

identified, the allegation that the informer 

had personally observed the drugs and 

criminal activity, and the allegation that 

the officers had verified the accuracy of 

the informer's information concerning the 

suspect's activities and his living 

arrangements, . . . that a substantial basis 

existed for the magistrate to have found 

probable cause to issue the [search] 

warrant. 

Id. at 191, 402 S.E.2d at 922. 

 Appellant's case is similar to Boyd but differs in material 

respects. In both cases the informant's identity was known or 

reasonably ascertainable, the informant had not previously 

provided information to the police, the informant made a 

statement which was arguably against penal interest by admitting 

he had used illegal drugs, and the police were able to verify 

innocent information concerning the suspect's identity, 

automobile and place of residence. 

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 However, Boyd involved a warrant whereas appellant's case 

did not. Therefore, in Boyd, we deferred to the magistrate's 

probable cause determination, holding "that a substantial basis 

existed for the magistrate['s]" issuance of the warrant. Id. 

In appellant's case, by contrast, the police opted not to obtain 

an anticipatory warrant, and we review the issue of probable 

cause de novo, giving no deference to the probable cause 

determination made by the officer. See supra note 2 and 

accompanying text. 

 Second, evidence of the basis of the informant's knowledge 

was much stronger in Boyd than in appellant's case. In Boyd, 

the informant indicated he had personally observed cocaine being 

packaged and distributed in Boyd's residence within the previous 

seventy-two hours. In appellant's case, by contrast, the 

informant provided significant general information about the 

Lynchburg drug trade and its participants other than appellant, 

information which Officer Duff was able to confirm through other 

informants known to be reliable; but no evidence indicated the 

basis for the informant's specific claim that appellant would be 

delivering cocaine to a specific location at a specific time. 

 Third, Boyd contained less information tending to call the 

credibility of the informer into doubt. In Boyd, although the 

tipster admitted to having used drugs in the past, he was more 

of a "disinterested citizen" eyewitness than a "criminal" 

informant because he was gainfully employed and had no criminal 

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record, and no evidence indicated that he gave the information 

in the hope of gaining leniency on an outstanding criminal 

charge. In appellant's case, by contrast, the evidence 

established that the informant provided the information about 

appellant in the hope of gaining "[c]onsideration on an 

outstanding [criminal] charge." 

 We next examine these latter two distinctions. 

 Here, the predictive nature of the informant's tip might 

have compensated for deficiencies in the basis of the 

informant's knowledge and provided probable cause for 

appellant's arrest if the tip had been more accurate. See

Gates, 462 U.S. at 242-46, 103 S. Ct. at 2334-36 (predictive 

nature of detailed tip, coupled with extensive police 

corroboration of suspicious circumstances "ordinarily not easily 

predicted," provided probable cause for search warrant for car, 

despite anonymity of tipster). However, the tip did not predict 

that appellant would drive north on Route 29 before heading to 

the Lynchburg College area, and it specified that, at 7:30 a.m., 

appellant would drive to a particular residence near the 

college, which residence was "extremely specific as to the 

identity of the informant." Instead of driving to that 

residence, appellant drove past the street on which the 

residence was located and was headed away from it at the time 

the officers executed the stop. If the evidence had established 

the informant's connection to that residence and appellant had, 

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in fact, stopped there at the time the informant predicted, 

these events could have provided sufficient indirect evidence of 

the basis of the informant's knowledge. In the absence of such 

events, however, we hold, as a matter of law, that the portions 

of the tip the officers were able to corroborate were 

insufficient to bolster the absence of evidence of the basis of 

the informant's knowledge.3 Alabama v. White, 496 U.S. 325, 

330-32, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d 301 (1990) 

(where anonymous tip predicted that defendant would leave 

apartment in described car at specific time and drive with brown 

attaché case containing cocaine to nearby motel and police 

confirmed activities except for defendant's name and possession 

of attaché case and cocaine and stopped defendant "just short of 

[the specified] [m]otel," case was "close" but provided 

reasonable suspicion for a Terry stop); United States v. 

Campbell, 920 F.2d 793, 794-97 (11th Cir. 1991) (holding, under 

Gates, where reliability of confidential informant not 

established independently, that mere confirmation of tip that 

woman with whom informant allegedly had been working would 

arrive in Montgomery with three Mexican males via a specified 

 3

 We also note that additional facts not revealed about how 

the informant knew appellant was to deliver cocaine to the 

specified residence at 7:30 a.m. that day most likely did not 

protect the informant if he was truthful, because the 

time-specific information most likely made his identity apparent 

to appellant. Only if the informant was lying was the 

non-disclosure of the basis of knowledge likely to protect him. 

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highway in a green-and-white Chevrolet pickup truck with Texas 

license plates and stop at a specified truck stop between 

11:30 p.m. and 1:00 a.m. may have provided reasonable suspicion 

for investigatory stop but did not provide probable cause for 

arrest or search). 

 We also find that the portions of the tip that were 

corroborated were insufficient to overcome the deficiencies in 

the evidence concerning the informant's credibility or veracity. 

Although an informant's statements against penal interest may 

enhance his overall credibility and the likelihood that a 

specific tip is reliable, see Polston, 24 Va. App. at 745, 485 

S.E.2d at 635, the evidence established that the informant 

provided the information about appellant in the hope of 

obtaining "consideration on an outstanding charge." Because the 

nature of this outstanding charge does not appear in the record, 

we are unable to conclude that the informant's admission to 

being a drug user and seller sufficiently established his 

overall credibility or the reliability of his allegations about 

appellant. "[A]dmissions of crime do not always lend 

credibility to contemporaneous or later accusations of another 

[crime]." United States v. Harris, 403 U.S. 573, 584, 91 S. Ct. 

2075, 2082, 29 L. Ed. 2d 723 (1971) (plurality opinion). As 

Professor LaFave has recognized, "Courts . . . should not 

utilize the admission-against-penal-interest concept in a 

blunderbuss fashion, but instead should assess in a more careful 

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fashion, preferably upon a full disclosure by the police of all 

relevant circumstances, what the significance of that admission 

is in the context of the particular case." 2 Wayne R. LaFave, 

Search and Seizure § 3.3(c), at 124-25 (3d ed. 1996). This is 

so because "these individuals typically provide information 

after they have been apprehended by the police and after it is 

apparent to them that the police already know of their own 

involvement in the serious offense." Id. § 3.3(c), at 128. 

 Under the facts of this case, given the absence of evidence 

concerning the nature of the charges pending against the 

informant, we cannot ascertain whether his general admission to 

being a user and seller of drugs was a statement against penal 

interest tending to establish or enhance his credibility and the 

reliability of his tip or merely an admission of behavior in 

which he had already been caught red-handed. Compare Harris, 

403 U.S. at 584, 91 S. Ct. at 2082 (plurality opinion) (where 

opinion showed no outstanding charges against informant and 

informant gave "sworn verbal statement" that he had been 

purchasing illicit whiskey from premises to be searched for over 

two years, statement provided probable cause for issuance of 

search warrant for premises); Polston, 24 Va. App. at 741-43, 

485 S.E.2d at 633-34 (although charges of an unknown nature were 

outstanding, no evidence indicated informant gave tip in express 

hope of obtaining consideration for outstanding charge, and 

informant testified before magistrate, under penalty of perjury, 

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that he had used drugs at least once a week for several years 

and that he personally had seen drugs on premises to be searched 

within the previous seventy-two hours). 

 Further, we are unable to conclude that the content of the 

informant's tip gave him any reason to fear prosecution for 

giving false information if the tip failed to prove completely 

accurate. First, the bulk of the information the police 

corroborated was not predictive and was generally known or 

ascertainable to the public. Any failure of the predictive 

portions of the tip to come true would not likely have resulted 

in the informant's prosecution for giving false information. 

The failure of appellant to leave his own residence that 

morning, to arrive at the specified residence at the specified 

time, or to have cocaine in his possession when he did could 

have been explained by any number of factors, such as 

appellant's becoming sick, simply changing his plans, receiving 

a tip about the surveillance or becoming suspicious of the 

vehicle following him. Second, the record fails to establish 

that the content of the tip was based on the informant's 

first-hand knowledge rather than on hearsay received from a 

third party. Under either of these circumstances, the informant 

could easily conclude that he would not be held responsible if 

the tip did not prove wholly accurate. 

 Had the evidence established the informant's connection to 

the specific residence at which the sale was to take place or 

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had the police actually observed appellant's arrival there at 

the specified time, the totality of the circumstances likely 

would have established probable cause for appellant's arrest 

under our de novo standard of review. However, given 

appellant's failure to stop at or even drive directly by the 

specified residence, absent additional circumstances, the 

informant's tip could have been based on nothing more than the 

informant's knowledge of appellant's usual route to work or his 

weekly racquetball game, and his general knowledge that 

appellant used or sold drugs. 

 For these reasons, we hold that the evidence was 

insufficient to provide probable cause for appellant's 

warrantless arrest and, therefore, that the trial court 

erroneously denied the motion to suppress the evidence seized 

from appellant's person, car and residence.4 We reverse 

appellant's conviction and remand for further proceedings if the 

Commonwealth be so advised. 

Reversed and remanded.

 4

 Although the facts may have been sufficient to permit an 

investigatory stop, see White, 496 U.S. at 330-32, 110 S. Ct. at 

2416-17, the Commonwealth makes no claim that the police made 

any observations after the stop but preceding the arrest and 

search which would have elevated their suspicions to probable 

cause, and we glean no facts from the record which would support 

such a conclusion. 

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